765398
The principle of state liablity
- Conditions for liability
- Brasserie du Pecheur & Factortame: claimants
have to show that: 1. the rule of union law
infringed was intended to confer rights on indivs,
2. the infringement was sufficiently serious, 3.
there was a direct causal link between
infringement and damage sustained
- Brinkmann: If MS fails to take any step to
give effect to directive within time laid down,
that will constitute a sufficiently serious
breach for purposes of brasserie conditions
- National authorities hadn't failed to comply, they
made a bona fide attempt but provisions were open
to a number of perfectly tenable interpretations.
Court said if a directive is generally unclear, then
there won't be liability in damages. Only in the most
extreme cases that state will incur liability for
actions of supreme court decisions.
- National authorities hadn't failed to comply, they
made a bona fide attempt but provisions were open
to a number of perfectly tenable interpretations.
Court said if a directive is generally unclear, then
there won't be liability in damages. Only in the most
extreme cases that state will incur liability for
actions of supreme court decisions.
- 'Sufficiently serious'
- Degree of clarity and
precision of the EU rule that
has been breached (R v
HM Treasury ex p British
Telecom
- the 'intentionality' of the
infringement (Dillenkofer
v Germany)
- the degree of discretion
provided to the MS by the
provision (ex p Hedley Lomas)
- Degree of clarity and
precision of the EU rule that
has been breached (R v
HM Treasury ex p British
Telecom
- Brinkmann: If MS fails to take any step to
give effect to directive within time laid down,
that will constitute a sufficiently serious
breach for purposes of brasserie conditions
- Brasserie du Pecheur & Factortame: claimants
have to show that: 1. the rule of union law
infringed was intended to confer rights on indivs,
2. the infringement was sufficiently serious, 3.
there was a direct causal link between
infringement and damage sustained
- Definition
- Francovich: 'a State must be liable
for loss and damage caused to
individuals as a result of breaches of
Community law for which the State
can be held responsible'
- employees of a bankrupt company who were
trying to claim wages arrears, guaranteed by a
Directive which Italy had failed to implement.
Because they could not sue former employee
(horizontal effect), they sued the Italian state
instead. Held, Italian State liable for its failure
to implement directive if (conditions stated in
Brasserie.)
- employees of a bankrupt company who were
trying to claim wages arrears, guaranteed by a
Directive which Italy had failed to implement.
Because they could not sue former employee
(horizontal effect), they sued the Italian state
instead. Held, Italian State liable for its failure
to implement directive if (conditions stated in
Brasserie.)
- Francovich: 'a State must be liable
for loss and damage caused to
individuals as a result of breaches of
Community law for which the State
can be held responsible'
- Courts of last resort
- Köbler v Austria: if a national court of last resort delivers
a decision as a result of which a party is deprived of a
right, and that causes him to suffer loss then he can bring
proceedings against state.
- Objections
- Res Judicata, which prevents matters
definitively solved from being reopened.
And the need to protect the
independence of the judiciary
- Res Judicata, which prevents matters
definitively solved from being reopened.
And the need to protect the
independence of the judiciary
- Objections
- Köbler v Austria: if a national court of last resort delivers
a decision as a result of which a party is deprived of a
right, and that causes him to suffer loss then he can bring
proceedings against state.
- Relationship with Direct Effect
- Faccini Dori - a case on horizontal
direct effect. A community directive on
consumer protection that was not
implemented in Italy. Could claimant
rely on state liability to cancel
contract? Held, No, directives have no
horizontal direct effect.
- Faccini Dori - a case on horizontal
direct effect. A community directive on
consumer protection that was not
implemented in Italy. Could claimant
rely on state liability to cancel
contract? Held, No, directives have no
horizontal direct effect.
- Legitimacy of the Court's Approach
- State liability in Francovich not
derived from explicit treaty
provisions... seemed that Court
had been guilty of judicial
lawmaking and undermining of the
rule of law.
- State liability in Francovich not
derived from explicit treaty
provisions... seemed that Court
had been guilty of judicial
lawmaking and undermining of the
rule of law.
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